from the District Court of Laramie County The Honorable
Thomas T.C. Campbell, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel; 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;
Caitlin F. Young, Assistant Attorney General. Argument by Ms.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Phillip Sam was 16 years old when he arranged to meet a group
of teens at a park in Cheyenne, Wyoming, armed himself with
his mother's boyfriend's .40 caliber pistol, and went
to the park to wait for the rival group to arrive. As the
group approached, Mr. Sam stepped out from behind a tree and
shot repeatedly in the group's direction. Two young men
were injured-one fled and the other fell to the ground. Mr.
Sam approached the fallen youth and shot him in the head, a
shot which resulted in the youth's death. A jury found
Mr. Sam guilty of one count of first-degree murder, one count
of aggravated assault and battery, and ten counts of
attempted aggravated assault and battery.
Mr. Sam raises numerous issues on appeal. We conclude that:
the district court did not abuse its discretion when it
denied the motion to transfer his case to juvenile court;
although there were some errors in the jury instructions,
they were not prejudicial; although the prosecutor's
victim impact arguments were improper, they were not
prejudicial; there was sufficient evidence to support the
attempted aggravated assault charges despite the fact there
was no evidence he intended to shoot any particular
individual; the sentence imposed on Mr. Sam exceeds the
limits imposed by Miller v. Alabama, 567 U.S. 460,
132 S.Ct. 2455 (2012) and Bear Cloud v. State, 2014
WY 113, 334 P.3d 132 (Wyo. 2014) (Bear Cloud III);
the aggregate sentence does not deprive the parole board of
its statutory authority to consider parole of juveniles after
25 years; and Mr. Sam's sentences for first-degree murder
and aggravated assault do not violate double jeopardy. We
affirm in part, and reverse in part and remand for
The parties use different techniques, but generally agree
these are the issues raised in this appeal:
the district court abuse its discretion when it denied the
motion to transfer the proceedings to juvenile court?
A. Was Mr. Sam's statutory right to cross-examine
B. Did the district court properly assess the facilities
available to juveniles?
C. Did the district court properly weigh the likelihood of
the district court improperly instruct the jury when it:
A. Failed to remove a corrected instruction from the official
B. Failed to define "attempt"?
C. Gave the incorrect definition of "malice"?
D. Gave the definition of "reckless" rather than
the definition of "enhanced recklessness"?
E. Gave the incorrect inference of malice instruction?
F. Gave incomplete and incorrect self-defense instructions?
Did the prosecutor commit misconduct when he made victim
impact arguments in his closing argument?
there sufficient evidence to support Mr. Sam's
convictions for aggravated assault, even though there was no
evidence that he intended to harm any particular individual?
the sentence imposed upon Mr. Sam excessive because it:
A. Violates the Eighth Amendment because it is a de facto
life without parole sentence?
B. Deprives the parole board of its statutory authority to
consider parole of a juvenile after 25 years?
C. Violates the constitutional prohibition against double
jeopardy because it sentences Mr. Sam for both the murder and
the aggravated assault of the same victim?
Mr. Sam had ongoing conflict with a rival youth group, which
escalated on October 4 and into the early hours of October 5,
2014. The afternoon of the 4th, Mr. Sam stole a .40 caliber
S&W semi-automatic pistol from his mother's
boyfriend. Later, he had several communications with members
of the rival group about setting up a fight. He made sure the
group was primed to fight when he went out to the mall where
they were watching a movie, located one of their cars, and
broke its mirror and slashed its tires. Mr. Sam then went to
hang out at his friend Timber Strange's house. He took
out the gun to show his friends and "said that he was
going to kill someone that night."
When the car's owner discovered the damage, one of the
rival group, Damian Brennand, immediately called Mr. Sam,
believing he was "the only known person who would have
done it, " and "told him . . . he needed his ass
beat, " and that he was going to bring a gun to the park
to shoot Mr. Sam. Later, one member of the group called Mr.
Sam back to say they "couldn't get their hands on a
gun. They couldn't find one, " but they wanted to
meet him and fight. Mr. Sam changed the location of the
encounter to Martin Luther King Park and went there with five
friends. Mr. Sam took the pistol, and he and Timber Strange
sat in a pavilion for about 15 minutes. Mr. Strange
asked him if this was actually what he wanted to do, if he
actually wanted to do this.
Q. [Prosecutor] And by this, what did you mean?
A. As in hurt people and potentially kill somebody.
Q. And what did he say?
A. He had said, yeah, that he had felt that he needed to do
When one of their friends called to tell them the rival group
was approaching, Mr. Sam and Mr. Strange, who had bandanas on
their faces, moved to stand between some trees. As the group
of 12 youths approached, the two stepped out from the trees
and Mr. Sam shot repeatedly. One bullet grazed Damian
Brennand's arm, and another struck Tyler Burns in the
chest. Mr. Burns fell to the ground. Mr. Sam approached Mr.
Burns, who said "no" three or four times, and Mr.
Sam shot him through his hand and head. Mr. Burns died as a
result. The other 10 members of the rival group were not
injured. Mr. Sam was 16 years old.
Mr. Sam was charged on October 7, 2014, with 12 counts of
aggravated assault and battery with a deadly weapon, and one
count of first-degree murder. On October 28, 2014, he filed a
motion to transfer his case to juvenile court, pursuant to
Wyo. Stat. Ann. § 14-6-237(g). The district court
entered its order denying transfer on March 17, 2015. Mr. Sam
filed a petition for review of that decision, which this
Court denied on November 4, 2015. (The current appeal was
docketed on July 1, 2016, when Mr. Sam was 18 years old.)
After a six-day trial, the jury returned a verdict of guilty
on all counts. Mr. Sam filed a motion for a new trial,
arguing that the jury instruction on "malice" in
first-degree murder was incorrect under Johnson v.
State, 2015 WY 118, 356 P.3d 767 (Wyo. 2015), which was
published after the Sam trial. In addition, at the district
court's request, the parties briefed the question of
whether it was necessary to define "'attempt' as
it may apply to the various counts of Aggravated Assault and
Battery." After a hearing on the two issues, the
district court denied the new trial motion.
Mr. Sam was sentenced to life for the first-degree murder
charge. He could be eligible for parole after 25 years on
that sentence because he was under 18 at the time of the
crime. Wyo. Stat. Ann. § 6-10-301(c) (LexisNexis 2017).
He was sentenced to 9 to 10 years on each of the aggravated
assault charges, which the district court bunched into three
concurrent terms to be served consecutively―the
sentence is life 9-10 x 3, or, without counting good time,
parole eligibility for Mr. Sam in 52 years (25 27), when he
would be 70 years old.
The district court did not abuse its discretion when it
denied the motion to transfer proceedings to
The State has the burden of persuasion in transfer motions,
JB v. State, 2013 WY 85, ¶ 10, 305 P.3d 1137,
1141 (Wyo. 2013), and we review such decisions for an abuse
of discretion. Hansen v. State, 904 P.2d 811, 824
(Wyo. 1995). The district court conducted a three-day
transfer hearing, and issued a comprehensive Order Denying
Motion to Transfer Proceedings to Juvenile Court, in which it
analyzed the statutory factors to be considered by the judge
in deciding whether a child should be tried in juvenile court
or district court. They are:
(i) The seriousness of the alleged offense to the community
and whether the protection of the community required waiver;
(ii) Whether the alleged offense was committed in an
aggressive, violent, premeditated or willful manner;
(iii) Whether the alleged offense was against persons or
against property, greater weight being given to offenses
against persons especially if personal injury resulted;
(iv) The desirability of trial and disposition of the entire
offense in one (1) court when the juvenile's associates
in the alleged offense are adults who will be charged with a
(v) The sophistication and maturity of the juvenile as
determined by consideration of his home, environmental
situation, emotional attitude and pattern of living;
(vi) The record and previous history of the juvenile,
including previous contacts with the law enforcement
agencies, juvenile courts and other jurisdictions, prior
periods of probation to this court, or prior commitments to
(vii) The prospects for adequate protection of the public and
the likelihood of reasonable rehabilitation of the juvenile
(if he is found to have committed the alleged offense) by the
use of procedures, services and facilities currently
available to the juvenile court.
Wyo. Stat. Ann. § 14-6-237(b) (LexisNexis 2017).
Mr. Sam challenges the decision to deny the transfer motion
on three grounds: he contends that his confrontation rights
were violated when a police detective was permitted to
testify about the allegations against Mr. Sam based on what
he had been told by witnesses; he contends that the district
court was mistaken about the duration of facilities available
to juveniles; and he argues that the district court ignored
"uncontested" evidence that he presented a good
likelihood of rehabilitation. We find that the district court
correctly interpreted the statutes governing juvenile
proceedings, and did not abuse its discretion.
Mr. Sam's statutory right to cross-examine adverse
witnesses was not violated
Mr. Sam argues that the district court violated Wyoming
statutes and the confrontation clauses of the Wyoming and
United States constitutions when it admitted statements of
witnesses through the State's lead investigator,
Detective Harper. Detective Harper testified regarding the
nature of the allegations against Mr. Sam, based largely on
interviews with Mr. Sam and other witnesses and the reports
of other law enforcement officers.
Neither the confrontation clause nor the rules of evidence
apply to juvenile transfer hearings. The confrontation
clauses of the United States and Wyoming constitutions
specifically refer to "criminal prosecutions." U.S.
Const. amend. VI; Wyo. Const. art. 1, § 10. Juvenile
proceedings are civil matters not criminal prosecutions.
See Kent v. United States, 383 U.S. 541, 554 (1966);
Brown v. State, 2017 WY 45, ¶ 22, 393 P.3d
1265, 1274 (Wyo. 2017). Further, the Wyoming Rules of
Evidence do not apply to juvenile proceedings other than
adjudicatory hearings. W.R.E. 1101(b)(3). Juvenile transfer
hearings are not adjudicatory hearings, but determine which
court is proper for the prosecution of the matter. Wyo. Stat.
Ann. § 14-6-237(a) (LexisNexis 2017). As one court
[the] constitutional guarantees arising from the question of
admissibility of evidence at a trial on the merits do not
apply to a preliminary jurisdictional hearing which simply
determines whether the accused is to be tried in one court or
another. Such a hearing is a preliminary proceeding to
determine the propriety of transfer under the statutory
criteria. . . . Since the result of a preliminary judicial
proceeding as involved herein does not adjudicate the guilt
of the accused, the type of permissible evidential material
used by the court in reaching its conclusion is not
circumscribed by the limited evidential rules applied at
In Interest of B.T., 367 A.2d 887, 889 (
N.J.Super.Ct.App.Div. 1976); see also State v.
Woinarowicz, 720 N.W.2d 635, 641 (N.D. 2006).
The right to cross-examine witnesses at a juvenile transfer
hearing is, however, a statutory right conferred by the
Wyoming legislature. Wyo. Stat. Ann. § 14-6-223(b)(ii)
(LexisNexis 2017). The Juvenile Justice Act provision
governing transfer hearings states that transfer hearings
"shall be conducted in conformity with W.S. 14-6-222
through 14-6-224 except there shall be no jury." Wyo.
Stat. Ann. § 14-6-237(a). Wyo. Stat. Ann. §
14-6-223(b)(ii) provides that a "party to any proceeding
under this act is entitled to . . . [c]onfront and
cross-examine adverse witnesses." Thus, the question we
must answer is whether the district court's admission of
Detective Harper's testimony regarding the nature of the
allegations against Mr. Sam violated Mr. Sam's statutory
right to confront and cross-examine witnesses.
Statutory interpretation is a question of law which we review
de novo. Crain v. State, 2009 WY 128, ¶ 8, 218
P.3d 934, 938 (Wyo. 2009). The plain, ordinary, and usual
meaning of words used in a statute controls in the absence of
clear statutory provisions to the contrary. Id.
Where there is plain, unambiguous language used in a statute
there is no room for construction, and a court may not look
for and impose another meaning. Id. Where
legislative intent is discernible a court should give effect
to the "most likely, most reasonable, interpretation of
the statute, given its design and purpose."
Rodriguez v. Casey, 2002 WY 111, ¶ 20, 50 P.3d
323, 329 (Wyo. 2002).
Adekale v. State, 2015 WY 30, ¶ 12, 344 P.3d
761, 765 (Wyo. 2015).
The State urges us to adopt a rule limiting this statutory
right to confront witnesses at a juvenile transfer hearing to
only those witnesses who appear at the hearing. We decline to
do so. In most cases, the right to confront and cross-examine
only the witness recounting the information of another person
would serve little purpose. We will, however, look to the
intent of the statute and its application in the context of
juvenile transfer hearings. "[I]t is one of the surest
indexes of a mature and developed jurisprudence . . . to
remember that the statutes always have some purpose or object
to accomplish, whose sympathetic and imaginative discovery is
the surest guide to their meaning." Adekale,
2015 WY 30, ¶ 13, 344 P.3d at 765 (citations omitted).
Detective Harper's testimony went to the first three
factors, which concern the nature of the "alleged
offense." Wyo. Stat. Ann. § 14-6-237(b)(i-iii).
When it weighs the factors for transfer, the district court
makes no determination of the truth of the alleged offenses;
that is of course to be determined by a jury after a trial.
Probable cause had already been determined at the preliminary
hearing and is not a consideration at a transfer hearing.
See Wyo. Stat. Ann. § 14-6-237(b). Courts have
held that when a finding of probable cause to believe the
defendant committed the crime is not required in a transfer
hearing, the determination of whether to transfer a juvenile
to adult court may be based upon hearsay and "need not
be tested by cross-examination and confrontation."
Wolf v. State, 583 P.2d 1011, 1015 (Idaho 1978);
see also State v. Limoz, 112 P.3d 745, 752 (Haw. Ct.
App. 2005). A majority of jurisdictions, where probable cause
that the juvenile committed the crime must be established
during transfer hearings, allow hearsay testimony to
establish probable cause.
The purpose of cross-examination is to test "the
believability of a witness and the truth of his
testimony." Davis v. Alaska, 415 U.S. 308, 316,
94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Because in a
transfer hearing the district court only weighs the nature of
the alleged offenses, and makes no determination of
their truthfulness, cross-examination of those interviewed by
a detective testifying regarding the nature of the charges
has little "purpose or object to accomplish." Mr.
Sam had the opportunity to confront and cross-examine
Detective Harper regarding the nature of the allegations
against him, and for purposes of the transfer hearing, the
underlying witnesses were not "adverse witnesses."
There was no need to evaluate the truth of the testimony of
the underlying witnesses, and therefore no need to
cross-examine them. Mr. Sam's statutory right to confront
and cross-examine adverse witnesses was not violated when the
district court allowed Detective Harper to testify regarding
the allegations against Mr. Sam.
The district court did not abuse its discretion when it
assessed the rehabilitative facilities available to a
The district court's order accurately summarized the
testimony of Dr. Wachtel, the forensic psychologist who
testified that there was a "good likelihood" that
Mr. Sam could be rehabilitated by his 21st birthday if he
received appropriate services. The order also accurately
summarized the testimony of Gary Gilmore, Superintendent of
the Wyoming Boys' School, who testified that, although
therapeutic and habilitative services would be available
until a juvenile's 21st birthday, the Wyoming Boys'
School could discharge a juvenile at its discretion at any
time, and that the average stay for a juvenile in the
school's violent offender program is 8 to 12 months. Mr.
Sam takes issue with the conclusion of the district court
that "There is no reason to believe that the Wyoming
Boys' School, as good as it is, will succeed in a year or
less to rehabilitate the Defendant, whose 'nature is
avoidance, ' according to Dr. Wachtel, and who has
rebuffed 'a lot of attempts' to assist the Defendant
in turning his life around." He suggests that this
statement evidences the district court's misunderstanding
of the jurisdictional limits of the juvenile court and
consequent failure to consider available resources. Our
reading of the entire order reveals that the district court
understood very well the jurisdictional limits of the
juvenile court and properly considered the resources
available; weighing all the factors, the district court found
that it was unwilling to risk the possibility that Mr. Sam
could be released within a year if he were tried as a
juvenile. The district court did not abuse its
discretion in reaching that conclusion.
The district court did not abuse its discretion when it
weighed the likelihood of reasonable rehabilitation
Mr. Sam contends that he presented uncontested evidence that
he was reasonably likely to be rehabilitated, and,
furthermore, he argues that factor should outweigh the other
six factors in Wyo. Stat. Ann. § 14-6-237(b). We find no
support for the argument that any one of the seven factors
should outweigh the others. Indeed, this Court has said that
"Undue weight should not be given to any single
factor." JB, 2013 WY 85, ¶ 16, 305 P.3d at
Dr. Berry, who had counseled Mr. Sam in the past, did not
opine regarding the likelihood of Mr. Sam's
rehabilitation, but did express his belief that it was more
likely to succeed in the juvenile justice environment than in
the prison system. Dr. Wachtel, the forensic psychologist,
said that there was a "good likelihood" he could be
rehabilitated, but, as the district court noted, he also
[Not] all juveniles can be rehabilitated, and that the age of
the offender, the severity of the offender's actions, the
offender's willingness to accept treatment and
medications, and the offender's underlying mental health
conditions all play a role in the offender's chance of
there is a great deal of evidence regarding these factors
that does not weigh in favor of predicting rehabilitation.
Rebecca Campbell, a social worker/counselor for Laramie
County School District No. 1, testified that while she worked
with him, "he was very angry most of the time;"
"he wasn't really open to counseling;" "he
really had trouble with authority;" and he showed
"continued disrespect." Mike Webster, the school
resource officer at Central High School, testified regarding
his several interactions with Mr. Sam, usually arising from
violence on Mr. Sam's part. Kristen Siegal, assistant
principal at Central High School, testified regarding Mr.
Sam's fighting, name calling, and not wanting to follow
the rules, and her recommendation that he be expelled. Mr.
Sam's aggressive behavior continued after he was
arrested. While in detention, he verbally threatened
deputies, threatened to "stab somebody, " and
threatened and attempted to attack other juveniles. The
district court considered this "long history of
aggression, defiance and explosive outbursts, " along
with the fact that Mr. Sam "has generally refused to
take his medication, " and did not abuse its discretion
when it found "no reasonable likelihood of
rehabilitation for Mr. Sam within the juvenile court system,
nor prospects for adequate protection of the public."
Did the district court improperly ...