from the District Court of Campbell County The Honorable
Michael N. Deegan, Judge
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Tina N. Olson, Chief Appellate
Counsel; David E. Westling, Senior Assistant Appellate
Counsel. Argument by Mr. Westling.
Appellee: Peter K. Michael, Wyoming Attorney General; David
L. Delicath, Deputy Attorney General; Christyne M. Martens,
Senior Assistant Attorney General; Katherine A. Adams,
Assistant Attorney General. Argument by Ms. Adams.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury convicted the appellant, Donald Dean Foltz, Jr., of
first-degree murder and the district court sentenced Mr.
Foltz to life without the possibility of parole. Mr. Foltz
appeals his conviction, arguing the district court erred when
it denied his motion for judgment of acquittal. We affirm.
Mr. Foltz raises one issue in this appeal:
Did the trial court err by denying Mr. Foltz's motion for
judgment of acquittal in that there was insufficient evidence
to support proof of the elements of child abuse?
In the fall of 2014, Mr. Foltz moved into the home of his
girlfriend, Amanda Russell, and her two children. On December
22, 2014, Ms. Russell took her two-year-old son, BB, to a
pediatrician, Dr. Fall, with concerns that BB had been
vomiting, complaining of leg pain, and that he was bruising
easily. After an examination and receiving the results of
blood work, Dr. Fall concluded that BB's injuries were
due to child abuse. He informed Ms. Russell of his suspicions
and contacted the Department of Family Services (DFS). The
next day, Sergeant Michael Hieb of the Campbell County
Sheriff's Office accompanied an individual from DFS to
follow up on Dr. Fall's report. Sergeant Hieb noted many
bruises on BB; however, after Ms. Russell explained how BB
received all the bruises, he concluded the injuries did not
appear to be the result of child abuse.
From the evening of December 23 through the morning of
December 29, BB and his four-year-old sister, AR, spent most
of their time with babysitters and family friends. During the
evening of December 23, Ms. Russell left the children with
their babysitter, Mercedes Corbett, while she and Mr. Foltz
went to Rapid City to finish Christmas shopping. The children
spent the day and night of December 24 with John and Candace
LaValle. Ms. Russell arrived at the LaValle house at around
noon on Christmas day, and after eating Christmas dinner and
opening presents, took the children to her mother, Donna
Blake's, home to open presents. Ms. Russell and AR went
to Ms. Russell's home after spending time with the family
at Ms. Blake's, while BB stayed the night with his
grandmother. On December 26, both children went back to the
LaValle home where they stayed until approximately noon on
December 29. The LaValles then delivered the children to Ms.
Russell at her residence.
[¶5] The children spent the rest of December 29 at the
home with Ms. Russell and Mr. Foltz. The family had no
visitors. That evening, Mr. Foltz put BB to bed and he and
Ms. Russell went to bed at approximately 10:30 p.m. On
December 30, Mr. Foltz got out of bed at 8:00 a.m. when he
heard through the baby monitor that BB had awakened. Ms.
Russell stayed in bed until after noon, but she could hear
through a window Mr. Foltz, BB and AR working and playing
outside. After Ms. Russell got out of bed, she remained in
the home until about 4:00 p.m. when she left the children
with Mr. Foltz for approximately forty-five minutes while she
visited a friend. Ms. Russell returned home, but later that
evening went to the grocery store to purchase electrolytes
for BB because Mr. Foltz said that BB had vomited during the
day. When Ms. Russell left for the store, Mr. Foltz had
already put BB to bed for the night.
While Ms. Russell was at the store, Mr. Foltz brought an
unresponsive BB into Ms. Blake's home through the back
door. Mr. Foltz told Ms. Blake that he had
checked on BB after hearing a noise on the baby monitor. He
discovered there was something wrong with BB, he needed help,
and he did not know what to do. Ms. Blake called 911, wrapped
BB in a blanket, and then got into her vehicle with her
boyfriend and BB to meet the ambulance on the way to the
hospital. Mr. Foltz stayed behind to take care of AR.
Ms. Blake attempted to perform CPR as instructed by the 911
operator, but when she pressed on BB's chest he began to
vomit. She turned on a light in the vehicle and noticed a
large bruise on BB's forehead. She then met the
ambulance, and emergency medical personnel took BB to the
hospital. Emergency staff made vigorous attempts to revive
BB, but were unsuccessful. He was pronounced dead at 10:35
p.m. The emergency room physician who attempted to revive BB
noted extensive bruising from BB's jaw to chest, a bruise
with swelling on his forehead, a distended abdomen, and
multiple bruises over the rest of BB's body. The
physician believed the injuries were due to child abuse and
contacted law enforcement.
Dr. Donald Habbe performed an autopsy the next day and
concluded that BB died from blunt force trauma to the
abdomen. Dr. Habbe discovered multiple tears in BB's
mesentery which caused bleeding into the abdomen. He
believed the tears were caused by multiple instances of force
and were recent injuries that had occurred in the twenty-four
hour period before BB's death.
Following an investigation, the State charged Mr. Foltz with
one count of first-degree murder under Wyo. Stat. Ann. §
6-2-101(a) (LexisNexis 2017). The State alleged that Mr. Foltz
caused BB's death during the perpetration of child abuse.
A jury found Mr. Foltz guilty of the charge, and the district
court sentenced Mr. Foltz to life imprisonment without the
possibility of parole. Mr. Foltz filed a timely notice of
This Court reviews a motion for judgment of acquittal in the
same light as the district court. Bean v. State,
2016 WY 48, ¶ 43, 373 P.3d 372, 387 (Wyo. 2016). When
reviewing a motion for judgment of acquittal:
we examine and accept as true the evidence of the prosecution
together with all logical and reasonable inferences to be
drawn therefrom, leaving out entirely the evidence of the
defendant in conflict therewith.
A motion for judgment of acquittal is to be granted only when
the evidence is such that a reasonable juror must have a
reasonable doubt as to the existence of any of the essential
elements of the crime. Or, stated another way, if there is
substantial evidence to sustain a conviction of the crime,
the motion should not be granted. This standard applies
whether the supporting evidence is direct or circumstantial.
Bruce v. State, 2015 WY 46, ¶ 52, 346 P.3d 909,
925-26 (Wyo. 2015) (quoting Butcher v. State, 2005
WY 146, ¶ 11, 123 P.3d 543, 548 (Wyo. 2005)). As a
practical matter, the standard of review for denial of a
motion for judgment of acquittal is the same as that used
when an appeal claims insufficient evidence to convict. This
is because these appeals both challenge the sufficiency of
the evidence. Although Mr. Foltz facially challenges the
denial of his motion for judgment of acquittal, he is in fact
claiming that the evidence was insufficient to sustain a
conviction. When applying this standard, we do not reweigh
the evidence or re-examine the credibility of the witnesses.
Bean, ¶ 45, 373 P.3d at 387. Instead, we simply
determine "whether or not the evidence could reasonably
support such a finding by the factfinder." Id.
(quoting Hill v. State, 2016 WY 27, ¶ 13, 371
P.3d 553, 558 (Wyo. 2016)). "We review the sufficiency
of the evidence 'from this perspective because we defer
to the jury as the fact-finder and assume they believed only
the evidence adverse to the defendant since they found the
defendant guilty beyond a reasonable doubt.'"
Id. (quoting Oldman v. State, ...