ERIN T. OSTERLING, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Uinta County The Honorable Joseph
B. Bluemel, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; Desiree Wilson, Assistant Appellate
Counsel. Argument by Ms. Wilson.
Representing Appellee: Peter K. Michael, Attorney General;
Christyne M. Martens, Deputy Attorney General; Caitlin F.
Harper, Senior Assistant Attorney General; Darrell D.
Jackson, Director, Saige N. Smith, Student Director, and Erin
E. Berry, Student Intern, Prosecution Assistance Program,
University of Wyoming, College of Law. Argument by Ms. Berry.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.
Appellant, Erin T. Osterling, was convicted of delivery of a
controlled substance, methamphetamine, in violation of Wyo.
Stat. Ann. § 35-7-1031(a)(i). He contends the prosecutor
committed misconduct, resulting in denial of his right to a
fair trial. We affirm.
Appellant presents one issue:
Was Mr. Osterling denied his right to a fair trial and
materially prejudiced due to prosecutorial misconduct during
The Division of Criminal Investigation (DCI) organized a
controlled buy from Mr. Osterling by George Cantrall, a
confidential informant. Several law enforcement officers
participated in the operation: Special Agent Justin Mathson
of the DCI, Officer Jeffrey Chad Leichty of the Evanston
Police Department, and Deputy Brandon Nelson of the Uinta
County Sheriff's Department. Prior to the controlled buy,
Deputy Nelson interviewed Mr. Cantrall, searched Mr. Cantrall
and his vehicle, and provided funds to be used in the
controlled buy. Mr. Cantrall was fitted with a wire and was
observed by Deputy Nelson as he drove to Mr. Osterling's
house. After arriving at the house, but prior to exiting his
vehicle, Mr. Cantrall talked briefly through his passenger
window to Parker Austin, who had just left Mr.
Osterling's house. Special Agent Mathson and Officer
Leichty observed Mr. Cantrall's brief interaction with
Mr. Cantrall spent approximately four minutes in Mr.
Osterling's house before leaving. While in the home, Mr.
Cantrall observed Mr. Osterling packaging methamphetamine
into plastic baggies. He proceeded to purchase
methamphetamine from Mr. Osterling. After Mr. Cantrall exited
the house, Special Agent Mathson followed him to the police
department. Upon arriving at the police department, Mr.
Cantrall turned over the suspected methamphetamine to Deputy
Nelson. Deputy Nelson conducted a post-buy interview of Mr.
Cantrall and also conducted a strip search of Mr. Cantrall.
Subsequent testing revealed that the substance provided by
Mr. Cantrall was, in fact, methamphetamine.
As a result of these events, the State charged Mr. Osterling
with delivery of a controlled substance in violation of Wyo.
Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2015). He pled
not guilty and the case proceeded to trial. At trial, the
State presented testimony from Mr. Cantrall, the three law
enforcement officers involved in the controlled buy, and a
forensic chemist with the Wyoming State Crime Laboratory. Mr.
Osterling did not testify or call any witnesses on his
The jury determined that Mr. Osterling was guilty of delivery
of a controlled substance. He was sentenced to 18 to 48
months in prison. This appeal followed.
In raising his claim of prosecutorial misconduct, Mr.
Osterling takes issue with several statements made by the
prosecutor during closing argument. He did not object to any
of those statements at trial. As a result, we review for
plain error. Watts v. State, 2016 WY 40, ¶ 6,
370 P.3d 104, 106 (Wyo. 2016). "Plain error exists when:
1) the record is clear about the incident alleged as error;
2) there was a transgression of a clear and unequivocal rule
of law; and 3) the party claiming the error was denied a
substantial right resulting in material prejudice."
Id. We do not reverse the judgment "unless a
reasonable probability ...