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Popkin v. State

Supreme Court of Wyoming

October 26, 2018

JOSHUA R. POPKIN, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Campbell County The Honorable Thomas W. Rumpke, Judge

         Representing Appellant:

          W. Keith Goody, Attorney at Law, Battle Ground, Washington.

         Representing Appellee:

          Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Curtis M. McNiven, Senior Assistant Attorney General.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.

          DAVIS, Chief Justice.

         [¶1] 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.

         ISSUES

         [¶2] 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?

         FACTS

         [¶3] 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[1] 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] did."

         [¶4] 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.

         [¶5] 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. ...


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