JOSHUA R. POPKIN, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Campbell County The Honorable
Thomas W. Rumpke, Judge
Keith Goody, Attorney at Law, Battle Ground, Washington.
K. Michael, Wyoming Attorney General; Christyne M. Martens,
Deputy Attorney General; Caitlin F. Harper, Senior Assistant
Attorney General; Curtis M. McNiven, Senior Assistant
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
Appellant Joshua R. Popkin pled no contest to two charges of
second degree sexual assault. On appeal, he asserts that the
facts alleged in the charges against him did not constitute
crimes. We affirm because we conclude that his no-contest
pleas waived this appeal issue.
Dr. Popkin presents a single issue: Do the facts alleged in
this case constitute a crime? The State raises a second
issue: By pleading no contest to the charges, did Dr. Popkin
waive his only appeal argument?
Dr. Popkin, a licensed psychologist, was initially charged in
August of 2016 with one count of second degree sexual assault
by a person in a position of authority. The affidavit of
probable cause supporting the charge indicated that the alleged
victim, E.M., first met Dr. Popkin when she was in the
hospital in 2015 and he was her counselor. When she got out
of the hospital, she saw another counselor until Dr. Popkin
telephoned her and said he would like to be her counselor
again. During one of their counselling sessions, Dr. Popkin
began to kiss E.M. She related that "she didn't
really know what to do, so she kissed him back." Dr.
Popkin told E.M. that traditional therapy had not worked for
her. At a session in the summer of 2016, Dr. Popkin brought
marijuana oil with him, and E.M. took it. When Dr. Popkin
started kissing her and taking off her clothes, E.M. said she
"didn't really want to have sex with him, but [she]
In April of 2017, in a separate docket, Dr. Popkin was
charged with two counts of second degree sexual assault by a
person in a position of authority. The affidavit indicated
that Dr. Popkin served as counselor to the alleged victim,
J.S., in late 2015. J.S. described their counselling sessions
as "flirty." During a session at Dr. Popkin's
house, he offered her alcohol and marijuana, began kissing
her, and talked about matters of "a very sexual
nature." During two sessions in February of 2016, Dr.
Popkin had sexual relations and sexual contact with J.S.
In August of 2017, Dr. Popkin and the State entered into a
plea agreement. Dr. Popkin agreed to plead no contest to the
first charge and to one of the later charges, and the State
agreed to dismiss the second of the later charges. The State
agreed to recommend a sentence of one year in jail followed
by supervised probation for a period of ten years. The
district court accepted Dr. Popkin's no contest pleas.
However, it rejected the State's recommendation as to Dr.