from the District Court of Campbell County The Honorable John
R. Perry, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Tina N. Olson
[*] , Chief
Appellate Counsel; Kirk Morgan, Senior Assistant Appellate
Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.
Argument by Mr. Alden.
Representing Appellee: Peter K. Michael, Attorney General;
David L. Delicath, Deputy Attorney General; Christyne M.
Martens, Senior Assistant Attorney General; Samuel S. Voyles,
Assistant Attorney General. Argument by Mr. Voyles.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant, Gregory Douglas Davis, challenges his conviction
for strangulation of a household member, in violation of Wyo.
Stat. Ann. § 6-2-509(a)(i). He contends he was denied a
fair trial as a result of prosecutorial misconduct and that
there was insufficient evidence to support his conviction. We
Appellant presents the following issues:
1. Did the prosecutor commit misconduct which denied
Appellant his right to a fair trial?
2. Was the verdict supported by sufficient evidence that
bodily injury resulted from reckless impeding of breathing or
On June 1, 2015, Appellant asked his estranged wife, Jill
Davis, to visit him for dinner before an upcoming operation
on his foot. During the visit, Appellant became very
emotional and stated that he loved Ms. Davis and couldn't
go on without her. He asked for a hug, and she sat on his
lap. He started to pull on her clothes and tried to undo her
pants, but she told him to stop and asked him to release her.
Appellant then became aggressive.
Appellant threw Ms. Davis on the floor and tried to take off
her clothes. He then let Ms. Davis up from the floor, and she
grabbed her phone and car keys and tried to leave the house.
Appellant ran after her, took her phone and keys, and
wrestled her to the floor a second time. While on the floor,
Appellant laid on top of Ms. Davis, grabbed her neck, and
ripped off one of her earrings. She repeatedly told Appellant
she could not breathe, and asked him to let go. During the
struggle, Appellant tried to give Ms. Davis a hickey on her
neck, and she scratched him with her fingernails and bit his
arm. After Ms. Davis began to cry, Appellant finally let her
Ms. Davis retrieved her keys and escaped from the house
without stopping to get her shoes. She made a 911 call to the
police as she was driving away. During the call, Ms. Davis
stated she had been in an altercation with Appellant, and was
concerned that he was suicidal. Just after midnight on June
2, 2015, Deputy Trevor Budd of the Campbell County
Sheriff's Office was dispatched to Ms. Davis'
Ms. Davis told Deputy Budd that Appellant grabbed her neck
during the altercation and that she couldn't breathe. Her
voice was raspy, her pants were wet in the crotch, and she
had red marks on her neck. In a written statement that
recounted the events, Ms. Davis stated that "[Appellant]
was grabbing my neck. My earring ripped out. I kept telling
him I couldn't breathe. Please let go. I can't
breathe. Get off me."
After she spoke with Deputy Budd, Ms. Davis was evaluated by
two emergency medical technicians. She told the EMTs that
Appellant had assaulted and choked her, and that she had to
fight to get away. She stated that she was unsure whether she
lost consciousness during the altercation. The EMTs noted
that Ms. Davis had bruising and petechiae around her neck.
Later in the day on June 2, 2015, Ms. Davis met with the
prosecutor for the first time. The prosecutor explained that
Appellant would be charged with strangulation, and Ms. Davis
indicated that she had reservations about the term
"strangulation." After she was instructed to go to
the hospital for an evaluation, however, Ms. Davis reported
to the admitting nurse that she had been assaulted and
strangled. She also reported to the examining nurse that
Appellant had choked her and that she had been unable to
breathe. She stated that she had urine incontinence and was
not sure whether she had lost consciousness. The examining
nurse noted that Ms. Davis had a headache and had extensive
petechiae around her neck and ears. The nurse concluded that
Ms. Davis' symptoms were likely the result of
Ms. Davis was also evaluated by Dr. Daniela Gerard, an
emergency room physician. Dr. Gerard concluded that Ms.
Davis' symptoms indicated that it was very likely that
she had been strangled. Based upon Ms. Davis' symptoms -
including the probable loss of consciousness, her periods of
amnesia, the petechiae around her neck, and her incontinence
- as well as her statements that Appellant had grabbed her
neck, Dr. Gerard diagnosed her with asphyxiation by
Ms. Davis met with the Sheriff's investigator, Kim Jones,
for a taped interview on June 4, 2015. Ms. Davis told Ms.
Jones that Appellant had grabbed her neck. Ms. Jones asked
Ms. Davis "[i]s that when he strangled you the second
time you went down?" Ms. Davis responded with an
affirmative "uh-huh." Ms. Davis also stated,
however, that she had told the prosecutor that Appellant
"did not have his hands around my neck that I
Appellant was charged with strangulation of a household
member in violation of Wyo. Stat. Ann. § 6-2-509(a)(i)
(LexisNexis 2015). Prior to trial, Ms. Davis contacted the
State and stated that she wanted an opportunity to reconcile
with Appellant and did not agree with the prosecutor's
position in plea negotiations. Ms. Davis subsequently
submitted an affidavit of non-cooperation that was drafted by
Appellant's counsel. In a telephone message on December
7, 2015, she asked the State to drop the charges against
Appellant. She met with the prosecutor on January 19, 2016,
and minimized the physical altercation and changed the
details she had provided to law enforcement and medical
The State subsequently filed a notice of intent to use Rule
404(b) evidence, stating that it planned to use evidence of
other acts by Appellant to explain why Ms. Davis was
minimizing the events of June 1, 2015, and changing some of
the details from her earlier accounts to law enforcement and
medical providers. It also sought to introduce evidence of
Appellant's pretrial efforts to influence Ms. Davis'
testimony. Appellant objected to the State's motion to
introduce evidence under Rule 404(b) and requested a
Daubert hearing to determine the admissibility of
the State's proposed expert testimony relating to the
behavior of victims of domestic violence. The State also
filed a motion to treat Ms. Davis as a hostile witness
because she was no longer cooperating with the State.
The court held a hearing on the proposed expert testimony,
the proposed Rule 404(b) evidence, and the State's motion
to treat Ms. Davis as a hostile witness. The court concluded
that the expert testimony would be helpful to the jury and
determined that the expert would be allowed to testify.
However, it reserved ruling on the State's motion to
treat Ms. Davis as a hostile witness until Ms. Davis took the
stand at trial. The court took the 404(b) matter under
advisement and subsequently issued an order concluding that
the State's evidence relating to Appellant's