from the District Court of Carbon County The Honorable Wade
E. Waldrip, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, State Public Defender; Tina N. Olson; Chief
Appellate Counsel; Eric M. Alden, Senior Assistant Appellate
Counsel; David E. Westling, Senior Assistant Appellate
Counsel. Argument by Mr. Westling.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne Martens, Senior Assistant Attorney
General; and Katherine A. Adams, Assistant Attorney General.
Argument by Ms. Adams.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Following a jury trial, Jonathon Moser was convicted of three
counts of second degree sexual assault of a minor and one
count of first degree sexual assault of a minor. Mr. Moser
claims the district court abused its discretion in admitting
other acts evidence under W.R.E. 404(b) and in applying the
rape shield statute to limit cross-examination of one of the
victims. We affirm.
Mr. Moser presents two issues on appeal, which he states as
I. Did the trial court abuse its discretion by allowing the
testimony of P.S., J.G., K.J., and A.R. in violation of Rule
II. Did the trial court abuse its discretion by prohibiting
Mr. Moser from cross-examining A.C. on her prior experience
as a complaining victim?
In 2014, the Rawlins Middle School in Rawlins, Wyoming hired
Jonathon Moser as a 7th grade special education teacher for
the 2014-2015 school year. In that capacity he was assigned
any 7th grade student who had been placed on an individual
education program (IEP). Mr. Moser also had volunteer duties,
which are extra duties assigned on a volunteer basis and for
which a teacher does not receive any additional compensation.
Mr. Moser's volunteer duties were assisting with the
middle school volleyball program and supervising the tardy
During the 2014-2015 school year, AC was in the 8th grade at
the Rawlins Middle School. She was thirteen years old when
the school year began and turned fourteen in October 2014. AC
was also on a diversion program, which is a program
"where juveniles who are getting in trouble for the
first time with law enforcement have an opportunity to do a
precourt and an unofficial probation." AC was on the
program for a shoplifting charge and was required through the
program to meet with a diversion and probation officer.
[¶5] In February 2015, during a meeting with her
probation officer, AC disclosed that on an occasion when she
was serving a tardy detention under Mr. Moser's
supervision, he required her to sit next to him at his desk
and he rubbed her leg and tried to hold her hand. AC
described what happened on that occasion with Mr. Moser:
Q. And can you describe for the jury exactly what he was
doing with his hand on your leg? When you say "rubbing,
" you've got to describe it in detail.
A. I don't know. He was-just, like, had his hand rubbing
up and down my leg.
* * *
Q. Where were your hands at, [AC]?
A. In my lap.
Q. And at any point, did Mr. Moser try to touch your hands?
Q. And can you tell me about that?
A. My hands were, like, folded in my lap, like how they
always are. And he would, like, put his hand on top of mine,
like that, and would try holding it, but I pulled away.
Q. What did you do when he was touching your leg?
A. I started to, like, move away.
Q. Did he say anything to you as you moved away from him?
A. He told me that - like, as I was moving away, that if I
moved, I was going to get another day of detention.
Q. Did you get assigned another day of detention?
In response to the report from AC, AC's probation
officer, who was herself a deputy sheriff, contacted the
Carbon County Sheriff's Office. Sheriff's Deputy Tom
Lakia responded to that call and spoke with AC and her father
and then interviewed AC. Following his interview of AC,
Deputy Lakia interviewed several other students identified by
AC as possibly having additional information. Through those
additional interviews, Deputy Lakia "learned just a
little bit of further inappropriate touching with at least
two more students, " but none of the interviews revealed
touching of genitalia. The touching that was reported
involved students who served detentions, participated in
volleyball, or both.
Deputy Lakia prepared a report on his findings, and after
discussions with school officials and the county
attorney's office, the decision was made that there was
insufficient evidence to pursue criminal charges against Mr.
Moser. It is not clear from the record whether Mr.
Moser's 2014-2015 contract with the Rawlins Middle School
was terminated or he was placed on administrative leave for
the remainder of his contract, but he did leave the school
following the investigation into the allegations of
In the spring of 2015, the Glenrock High School in Glenrock,
Wyoming hired Mr. Moser to fill a special education position
which placed him in charge of two severely disabled students.
Mr. Moser's duties also included assisting the
school's other two special education teachers as needed
and essentially working as a team in the special education
department. Mr. Moser and the high school's principal,
Chris Gray, discussed the possibility of Mr. Moser serving as
an assistant freshman volleyball coach, but they never got
beyond discussing the idea.
In January 2016, Principal Gray was visited by JB, a student
in the high school's 9th grade, along with her mother and
grandmother. JB reported that on the prior Friday, she
attended a session of Academic Plus for one of her
classes. JB reported that her teacher was in and
out of the room during the session and on one occasion when
her teacher was out of the room, Mr. Moser entered the room,
started rubbing her shoulders, and told her when she was done
she could come to his classroom. When JB completed her
Academic Plus session, she left the room and headed to her
locker, which required that she pass Mr. Moser's room.
JB reported that when she passed Mr. Moser's room, he was
seated in the entry alcove reading a book and he stood up and
said "hi" to JB. He then started kissing her and
pulled her into his classroom and pressed her against a
countertop in the room. Mr. Moser "started to dry
hump" JB and touched her breasts and vagina above her
clothing. JB described what happened next:
Q. How long did this go on for?
A. I don't know. A couple of minutes.
Q. Were you and Mr. Moser - were you talking at all during
Q. Did you say anything to him as this happened?
A. I just told him that I needed to leave because my mom was
downstairs waiting for me.
Q. Was your mom downstairs waiting for you?
A. No. My brother was downstairs waiting for me.
Q. Why did you say your mom was downstairs waiting?
A. I don't know.
Q. Did Mr. Moser say anything back to you?
A. He asked me if there was anything he could do to make me
Q. What did you tell him?
A. I told him, no, that I needed to leave.
Q. Did you leave at that time?
Q. Where did you go?
A. I went downstairs and I got in the truck with my brother
and went home.
Q. [JB], did you tell anyone right away?
Q. Why not?
A. Because I was scared.
Q. What were you scared of?
A. I don't know.
Q. When did you tell someone?
A. The Monday after it happened.
Q. Can you explain to us how that came about that you told
A. I saw him in his classroom before - or, like, right when
school started, and he just waved at me. And I just had a
mental breakdown, and I went to the bathroom and I called my
mom and told her she needed to come get me.
Principal Gray reported the incident to law enforcement, and
Officer Felton of the Glenrock Police Department responded to
the call. During the course of his investigation, Officer
Felton located two additional students with similar reports,
and he also learned of the earlier Rawlins Middle School
investigation. Officer Felton contacted Deputy Lakia in
January 2016 to discuss the Rawlins investigation, and Deputy
Lakia decided to re-interview the Rawlins witnesses.
Officer Felton and a deputy from the Converse County
Sheriff's Office, Deputy Koss, traveled to Rawlins, and
together with Deputy Lakia they re-interviewed the Rawlins
witnesses. During their first interview of AC, which occurred
in January 2016, AC reported the same incident of touching
she had reported in her 2015 interview. In a subsequent
interview about a week and a half to two weeks later, in
February 2016, AC reported an additional incident in which
Mr. Moser forced her to have sexual intercourse. AC described
Q. Okay. So let's talk about the third time you get
called down. Did you get called to the office?
Q. Did you have to go serve detention with Mr. Moser?
Q. Were there any other kids that day?
A. They called a couple, but no one else showed up.
Q. Did you end up going to Mr. Moser's room for
Q. Where did you go when you got to the room?
A. To where I normally sat, on the side of the tables, on the
Q. And was the door to the classroom open or closed that day?
A. That day, it was completely closed.
Q. The other days that you served detention, was the
classroom door open or closed?
A. It was a little bit open, propped open by a doorstop.
Q. On both of the other days?
Q. Where did Mr. Moser sit when you got to detention?
A. He grabbed his papers and came over and sat - like,
becausethere's separate tables - he sat at this one, and
I was at this ...