from the District Court of Natrona County The Honorable
Catherine E. Wilking, Judge
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Tina N. Olson, Chief Appellate
Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.
Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General; James
Michael Causey, Senior Assistant Attorney General; Philip
Murphy Donoho, Assistant Attorney General. Argument by Mr.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A Natrona County jury found Desmond Otto Triplett guilty of
one count of immodest, immoral or indecent liberties with a
minor and three counts of second-degree sexual abuse of a
minor. He appeals two issues. First, he argues that the
indecent liberties charge was duplicitous in that it alleged
a single charge based on a course of conduct occurring during
a twenty-eight month period. He contends that the State
should have identified a specific single act and date as the
basis for its charge. Mr. Triplett next argues that the State
committed prosecutorial misconduct by violating a pretrial
order requiring notice to the trial court before inquiring
into a specific area of facts.
We determine that Mr. Triplett waived any duplicity defects
by failing to object as required by W.R.Cr.P. 12(b)(2). We
further hold that the district court did not abuse its
discretion in determining that a single question asked by the
prosecution, while potentially in violation of the pretrial
order, did not prejudice the defendant. Accordingly, we
Mr. Triplett presents the following issues:
1. Was Mr. Triplett denied his fundamental right to
a fair trial and a unanimous verdict by the duplicitous
2. Was Mr. Triplett denied his right to a fair trial due to
State identifies the same subject matters, but argues the
issues to be decided within those areas are more specific. We
restate the State's issues as:
1. Did Mr. Triplett waive any claim that the indecent
liberties charge was duplicitous?
2. Did the prosecutor commit prosecutorial misconduct by
asking a question on cross examination potentially in
violation of a pretrial order?
The State charged Mr. Triplett with one count of taking
immodest, immoral or indecent liberties with a minor, TP,
during a time span from March 1, 1975 through June 31 (sic),
1977. The district court read that charge to Mr. Triplett,
and then asked, "do you understand the charge against
you in Count One as well as the potential penalties,
sir?" Mr. Triplett responded, "Yes,
Ma'am." The State also charged Mr. Triplett with
other crimes, including three counts of second degree sexual
abuse of a minor, KW. The charges related to KW alleged
conduct occurring in 2010 through 2013.
Mr. Triplett did not file an objection to any of the charges
against him. He did not object to any jury instruction about
the indecent liberties charge.
Before trial, the State filed notice of its intent to
introduce evidence against Mr. Triplett under W.R.E. 404(b).
Some of that evidence showed Mr. Triplett had engaged in
additional sexual activity with the alleged victims, with his
daughter, JB, and with his niece's sister, MD. The
district court determined that some of the proposed evidence
relating to other alleged victims was admissible. However, it
ruled that evidence regarding JB (Mr. Triplett's
daughter) and MD (Mr. Triplett's niece's sister) was
inadmissible because "the times were not clear, and the
places where those things may have occurred were not
clear." The district court stated "that sort of
information (about JB and MD) is not to come forward in any
way, shape or form. If, during trial, you believe that
somehow someone's opened the door on that or you believe
it has somehow become admissible, counsel need to approach
the bench, and we'll take up that matter outside of the
At trial, the State presented evidence of many alleged sexual
encounters between Mr. Triplett and TP which occurred between
March 1, 1975 and the end of June 1977.The State did not
identify any single event as constituting the immodest,
immoral or indecent liberties which were charged. Rather, in
closing the prosecutor described the entire course of Mr.
Triplett's relationship and sexual encounters with TP
during the twenty-eight month period, and then simply told
the jury "it's up to you to decide if it was
immoral, indecent, immodest." The district court
instructed the jury that the elements of the charge related
to TP were only that during the twenty-eight month time frame
Mr. Triplett "knowingly took immodest, immoral or
indecent liberties with TP." The jury was not given any
further specificity on which act, or acts, allegedly
constituted the crime. The defense was in step with this
non-specific course of conduct approach to the crime. In
closing, Mr. Triplett's attorney told the jury to
consider the totality of the circumstances and "look at
when these things were occurring and just decide, you know,
is he guilty of - of indecent, immoral acts - you know,
that's a two-way street."
During the trial, Mr. Triplett called four character
witnesses who testified that, in their opinion, Mr. Triplett
had good character. Two of those witnesses were Mr.
Triplett's daughters, and sisters of JB. The first of Mr.
Triplett's daughters to testify, Ms. Wilson, provided the
following testimony on direct examination by Mr.
Q. And how do you know the defendant?
A. He's my father.
. . . .
Q. And do you have any children of your own?
A. I do.
Q. Okay. How ...