from the District Court of Sheridan County The Honorable John
G. Fenn, Judge
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; David E. Westling, Senior Assistant
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Caitlin F. Harper, Senior Assistant Attorney General; James
B. Peters, Assistant Attorney General.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
A jury found Robert C. Swett guilty of aggravated child
abuse. He claims the district court erred by allowing the
State to present testimony about an altercation he had in
jail while awaiting trial in this case. We conclude the
district court abused its discretion by admitting the
evidence; however, Mr. Swett was not prejudiced by the error.
Consequently, we affirm.
Mr. Swett presents the following issue on appeal:
Did the trial court abuse its discretion by admitting
evidence of subsequent bad acts contrary to W.R.E. 404(b) and
irrelevant [evidence], contrary to W.R.E. 401?
On July 16, 2016, Kimberly Wegener (Kimberly) gave birth to a
healthy baby boy (hereinafter referred to as "the
Child"). Mr. Swett was the Child's father. The Child
had difficulty gaining weight and, in September 2016, was
hospitalized for failure to thrive. During his two-day
hospital stay, the Child gained 12 ounces. This led his
pediatrician to conclude the parents simply were not feeding
the Child enough. The pediatrician, the nurses at the
hospital, and a public health nurse worked with the parents
to develop strategies to help the Child gain weight. The
parents were taught how to hold the Child during feedings,
the frequency with which he should be fed, and the amount he
should be fed at each feeding. The parents were concerned
about the Child spitting up but, although he had a minor
reflux issue, the healthcare providers did not see it as an
impediment to weight gain. Throughout the fall and winter of
2016, the Child was seen frequently for weight checks. The
public health nurse even came to the family's home to
help them with feeding issues. Despite those efforts, as of
January 2017, the Child's weight was below the first
percentile on the growth curve.
On January 13, 2017, Mr. Swett and Barbara Wegener (the
Child's grandmother and Kimberly's mother) took the
Child to the pediatrician's office. The Child had been
vomiting, and he was cold, pale, and not as alert as normal.
The Child had bruising on his forehead and redness and
scratches on the top of his head. Mr. Swett told the nurse he
had dropped the Child in the bathtub the night before, while
rinsing him off after a vomiting incident. The pediatrician
ordered a CT scan of the Child's head, which revealed a
skull fracture and subdural hematoma.
Law enforcement was notified about the Child's injuries,
and Sheridan Police Department Detective Daniel Keller went
to the hospital to interview Mr. Swett and Kimberly. Mr.
Swett told him that, the previous night, he was watching the
Child while Kimberly slept. Mr. Swett said the Child had a
history of vomiting and, after his 8:00 p.m. feeding, he
"immediately threw up," "like a volcano or a
fountain, just going all over." Mr. Swett took the Child
to the bathroom and washed him off by holding him under the
shower. He said he was holding the Child in his left arm
"in a cradling fashion" with the shower running and
he used his right arm to "reach over to a cabinet above
the sink . . . and get some soap, and then wash the child
over the tub." Mr. Swett then
described a series of quick events where essentially the
child made some sort of turn and slipped from his arms into
the tub. He described the child hitting face first in the
tub. He described having a difficult time getting control of
the child as the child was wet and slippery. He described the
child, as he was trying to get control, essentially hitting
his head on the side of the tub again or the drain and again
falling on his butt before he gained control of him.
Swett told the detective that he took the Child to the living
room and noticed red marks on his forehead. The Child cried
for about five minutes before Mr. Swett was able to calm him
and put him to sleep. Mr. Swett said that, when he woke the
Child the next morning to feed him, he noticed the red marks
had turned dark purple.
The Child's injuries were serious, so he was
life-flighted to Children's Hospital in Denver, Colorado,
and Mr. Swett accompanied him. The Child stayed at
Children's Hospital for several days, during which time
he underwent numerous tests and his condition was monitored.
A child protection team (CPT) became involved in the case to
determine whether the Child's injuries were the result of
accidental or non-accidental (abusive) trauma. After speaking
with Mr. Swett, observing his behavior, and reviewing the
results of various tests, the CPT determined the Child's
injuries were the result of child abuse and took him into
The State charged Mr. Swett with felony child abuse and later
amended the charge to aggravated child abuse, under Wyo.
Stat. Ann. § 6-2-503 (LexisNexis 2017):
(b) A person is guilty of child abuse, a felony punishable by
imprisonment for not more than ten (10) years, if a person
responsible for a child's welfare as defined in W.S.
14-3-202(a)(i) intentionally or recklessly inflicts upon a
child under the age of eighteen (18) years:
(i) Physical injury as defined in W.S. 14-3-202(a)(ii)(B),
excluding reasonable corporal punishment[.]
. . . .
(c) Aggravated child abuse is a felony punishable by
imprisonment for not more than twenty-five (25) years if in
the course of committing the crime of child abuse, as defined
in subsection (a) or (b) of this section, the person
intentionally or recklessly inflicts serious bodily injury
upon the victim[.]
Pursuant to Wyoming Rule of Evidence 404(b), Mr. Swett filed
a demand for disclosure of other crimes, wrongs, or acts the
State intended to use as evidence at trial. The State gave
notice that it intended to use evidence of Mr. Swett's
acts of violence toward two former significant others and the
children they shared with Mr. Swett, and a violent act he
committed while in jail on the child abuse charge. The
district court refused to allow testimony from Mr.
Swett's former significant others but allowed testimony
regarding the jail incident to show intent, lack of accident,
The case went to trial before a jury in September 2017.
During the four-day trial, the State presented fifteen
witnesses, including Kimberly, Barbara Wegener, the nurse who
saw the Child at the pediatrician's office on January 13,
2017, the Sheridan Memorial Hospital radiologist who read the
Child's CT scan, two nurses from the Sheridan hospital,
the Child's pediatrician, a nurse from Children's
Hospital, two social workers from Children's Hospital,
Detective Keller, an expert pediatrician with specialized
training in child abuse from Children's Hospital, and
three witnesses regarding the jail incident.
The defense presented three witnesses, including the public
health nurse who helped Mr. Swett and Kimberly with the
Child's feeding and weight issues, an expert neurologist,
and Mr. Swett. The district court instructed the jury that,
in order to convict Mr. Swett of aggravated child abuse, it
had to find that he intentionally inflicted serious bodily
injury upon the Child, in addition to the other elements of
the charge. The district court also instructed the jury on
Mr. Swett's theory of defense: "It is the
Defendant's theory of defense that the injuries to [the
Child] were the result of unintentional acts." The jury
returned a verdict of guilty. The district court sentenced
Mr. Swett to 18 to 23 years in prison, and Mr. Swett filed a
timely notice of appeal. More facts will be provided as
necessary to our discussion of the issue on appeal.
By filing a pre-trial demand for notice of other bad acts
evidence, Mr. Swett preserved his claim that the district
court erred by admitting the evidence at trial. See
Garrison v. State, 2018 WY 9, ¶ 12, 409 P.3d 1209,
1213 (Wyo. 2018). When an issue regarding the admissibility
of evidence is presented to the district court, we review its
decision for abuse of discretion. Triplett v. State,
2017 WY 148, ¶ 23, 406 P.3d 1257, 1262 (Wyo. 2017);
Garland v. State, 2017 WY 102, ¶ 24, 401 P.3d
480, 487 (Wyo. 2017).
A trial court's rulings on the admissibility of evidence
are entitled to considerable deference, and, as long as there
exists a legitimate basis for the trial court's ruling,
that ruling will not be disturbed on appeal. The appellant
bears the burden of showing an abuse of discretion.
In re GAC, 2017 WY 65, ¶ 32, 396 P.3d 411, 419
(Wyo. 2017) (quoting Wise v. Ludlow, 2015 WY 43,
¶ 42, 346 P.3d 1, 12 (Wyo. 2015)) (other citations
If we find the district court erred by admitting the
evidence, we must then determine whether the error was
prejudicial, requiring reversal, or whether the error was
harmless. Foster v. State, 2010 WY 8, ¶ 4, 224
P.3d 1, 4 (Wyo. 2010); W.R.Cr.P. 52. An error is deemed
prejudicial when there is a reasonable probability that, in
the absence of the improper evidence, the verdict would have
been more favorable to the appellant. Bustos v.
State, 2008 WY 37, ¶ 9, 180 P.3d 904, 907 (Wyo.
2008) (citing Burton v. State, 2002 WY 71, ¶
12, 46 P.3d 309, 313 (Wyo. 2002)).
Mr. Swett claims the district court abused its discretion
when it admitted evidence of the jail incident under Rule
404(b), which states:
(b) Other crimes, wrongs, or acts. - Evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.
Our Rule 404(b) jurisprudence requires four elements be
satisfied before other bad acts may be ...